Photograph by: David Moll
, Calgary Herald

Prosecuting someone with murder when no body has been recovered poses challenges for Crown attorneys, but they are not insurmountable, criminal law experts said Tuesday.

In a typical murder case, the main burden for prosecutors is convincing a judge or jury that the suspect committed the crime. When there isn’t a body, the Crown has the extra burden of proving beyond a reasonable doubt that a person has, in fact, died, and that their death was the result of a criminal act.

“When you have a no-body homicide you have to prove everything from the ground up,” said David Butt, a Toronto lawyer who successfully prosecuted such a case.

Butt was reacting Tuesday to the news that Douglas Garland had been charged with three counts of murder in connection with the disappearance in Calgary of five-year-old Nathan O’Brien and his grandparents, Alvin and Kathy Liknes.

Nathan had been sleeping over at his grandparents’ house. Police have said evidence from inside the home showed signs of a violent struggle.

So far, the trio’s bodies have not been recovered.

The recovery of human remains can often yield important clues as to how someone died and narrow the list of suspects, said Jonathan Dawe, a criminal lawyer in Toronto. Perhaps, there’s DNA evidence that links the victim to the suspect. In the case of a shooting death, the entry wounds can suggest the type of weapon used.

When there isn’t a body, you need “strong circumstantial evidence,” such as witness statements, a confession and forensic evidence linking the suspect to the crime scene, said Ian Savage, president of the Calgary-based Criminal Defence Lawyers Association.

Butt said he relied on the testimony of 66 witnesses to paint a “compelling overall narrative” and convince a jury in 2001 that Timothy Culham, then 29, had murdered Hugh Sinclair, a 72-year-old Toronto antique collector, even though Sinclair’s body had not been found.

There was no confession and no witnesses to the killing. But the jury did hear of the discovery of Sinclair’s DNA in the trunk of a car that Culham had rented. Culham had also gone to local dealers to sell Sinclair’s antiques. Sinclair’s blood was found beneath the flooring in his home.

It wasn’t until after Culham’s conviction that Sinclair’s body was found in a ditch.

There’s sort of a “public myth” that you need to have a body in order to prosecute someone for murder, said Janne Holmgren, director of the Centre for Criminology and Justice Research at Mont Royal University in Calgary. But human remains, especially those that are badly decomposed, can’t always tell the full story of how someone died, she said.

Just take a look at the case of Casey Anthony, she said, referring to the Florida woman accused of killing her two-year-old daughter, Caylee, and dumping her body. At the time she was charged, Caylee’s body had not yet been found; the girl’s remains were found two months later. A jury later acquitted Anthony of murder.

Naturally, the lack of a body will be something that defence lawyers will be looking to exploit, said Steven Penney, a law professor at the University of Alberta.

“You’re planting a seed of doubt that there’s something not quite complete about this case; there’s a missing piece. What you try to do is exploit that missing piece into an argument about reasonable doubt,” he said.

In 1991, a jury acquitted a Red Deer, Alta., man of second-degree murder charges in a case where the alleged victim’s body had not been found.

Jacob Wanner had been accused of killing his estranged wife, Wihelmina Wanner. Prosecutors had presented evidence of a bathtub that had been stained red with blood and a kitchen knife found on the floor.

Before the verdict, Wanner’s lawyer told the jury that many injustices had been done convicting someone without a body.

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